Political rights are so easily taken for granted – until they’re threatened or curtailed by repressive laws. In the United States, they are usually most vulnerable when people are anxious about some outside threat.After World War II, for instance, dissent became risky as relations with Russia hardened into Cold War I. Hysteria about domestic Communist subversion led quickly to state and congressional investigations of “un-American activities.” And in 1951, a Supreme Court decision led to the imprisonment of eleven Communist leaders, not for any overt acts threatening national security, but rather for trying to organize a political party and teach Marxism.

Today the threats to political liberty are no less imminent.

The groundwork was actually laid when a proposal for a massive rewrite of the US criminal code became the Nixon administration’s blueprint for crushing dissent and savaging the Bill of Rights. After Watergate and FBI-CIA revelations, proposed charters for the intelligence community were exploited as springboards to legalize intrusive techniques. Meanwhile, the Supreme Court moved toward prior restraint of free speech.

Prior restraint of the press became government policy in March 1979 when The Progressive magazine was prevented from publishing an article on the H-bomb. The ban succeeded for six months, on grounds that the 1954 Atomic Energy Act gave the government the right to suppress nuclear knowledge. Although the case was eventually dropped, the law may very well be used again.

Original Vanguard Press cover, 1980

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Support from other publications was slow in coming, possibly because the case involved a small Wisconsin monthly rather than a daily giant like The New York Times’ publication of the Pentagon Papers. The press gag ended only when other researchers found and printed the same “secrets.”
Even though the government dropped its case, it asserted that the section on violating national security secrets in the Atomic Energy Act would continue to be enforced, one of several “loaded pistols aimed at the First Amendment,” as writer Nat Hentoff put it.
In February 1980, the Supreme Court ruled, in the case of ex-CIA agent Frank Snepp, that government agencies have the right to restrict publication of national security information – even if the material is unclassified – when the book or article has been produced by a government worker with access to “confidential sources.”
The Court had effectively usurped the lawmaking powers of Congress and gone a long way toward enacting an American version of the British Official Secrets Act. In a letter to The New York Times, Harvard Law Professor Alan Dershowitz, who was working with Ted Kennedy at the time, said that an Official Secrets Act might not be needed since “we have one now.”
The decision went further that penalizing one CIA employee for breaking his contract. Any government worker in a relationship of trust with his agency, whether or not a written agreement exists, could have rights to speech diminished. The high court, with four Nixon appointees in the majority, buttressed lower court decisions involving CIA censorship of ex-agent Victor Marchetti. That case dealt with classified material, and the Court set up a powerful precedent for prior restraint that violated the public’s right to know.
In the 1950s and afterward, the intelligence community saw itself in a war with those who supposedly threatened the existing social order. Programs conducted in the heat of the Cold War ranged from, multi-million dollar covert actions worldwide – secret support for pro-American political parties, destabilization of “unfriendly” regimes, arms transfers, training and propaganda – to a wide range of domestic “counter-intelligence” efforts.
Americans were shocked to learn that the FBI, CIA, National Security Agency (NSA) and others had conducted massive campaigns of spying and subversion directed at American citizens, most of whom had never committed any crimes.
After the revelations of the mid-1970s Congress moved toward defining a set of standards, to be codified in several laws. But by the time the first of these, the Foreign Intelligence Surveillance Act (FISA) was passed in 1978, the mood had already changed. There was little objection when CIA Director Stansfield Turner nullified regulations banning the use of journalists, academics and the clergy in intelligence work.Under a 1978 Presidential order on intelligence work, an investigation or covert project could be initiated if a person was “reasonably believed” to be involved in activities which may or may not involve legal violations, or was aiding or conspiring in these possible activities. Reasonable belief as a standard does not require concrete evidence that a law is being broken. The “potential” for a threat can be enough.
As pressures for action in the Middle East mounted, President Carter asked for a freer rein in initiating programs (the CIA was already supplying arms to rebels in Afghanistan, according to several sources). Carter also wanted less public access to CIA information. One proposal was to bar US citizens from obtaining information about any program that didn’t directly involve the individual.
Critics of this exemption to the Freedom of Information Act (FOIA) said it would damage historical and journalistic research and informed public debate. Yet, in a hasty reaction to international tensions, congressional oversight and an independent check of intelligence operations became another casualty of the obsession with “national security.”

Daniel Ellsberg: ‘I’m sure that President Obama would have sought a life sentence in my case’

In 1971, an American military analyst named Daniel Ellsberg gave a New York Times reporter a copy of “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense,” a multi-volume work that became known as the Pentagon Papers. The massive, classified study painted a candid and unflattering portrait of the military’s conduct of the Vietnam War. The Supreme Court rejected the government’s request for an injunction against its publication later that year in a 6-3 ruling.

Ellsberg became the first person prosecuted under the 1917 Espionage Act for releasing classified information to the public. But the case was thrown out after the judge learned that the government had engaged in the illegal wiretapping of Ellsberg and other misconduct.

Today, Ellsberg is one of the most outspoken critics of the Obama administration’s prosecution of leakers. Under President Obama’s tenure, the government has prosecuted six individuals for releasing classified information to media organizations.

Ellsberg is particularly fierce in his support of Bradley Manning, a young soldier who released a large amount of classified information to WikiLeaks. Manning was arrested in 2010, and his military court-martial began this week. Ellsberg considers Manning a hero, and he argues that there is little difference between what Manning did in 2010 and what Ellsberg did four decades earlier. We spoke by phone on Friday. The transcript has been edited for length and clarity.

Daniel Ellsberg: There are two reasons. One is to educate the public on the wars that he was exposing and the information that he put out. He has said his goal was to help the public make informed decisions. We’re grateful for that, and we’re trying to extend that word and bring that about.

Also, I and a lot of other people feel that we need more whistleblowers, and that to allow the government simply to stigmatize them without opposition does not encourage that. I think we’ve got to convey to people appreciation for the information that we do get, the idea that someone can make a difference.

In a military trial there isn’t a whole lot of possible influence, but the general atmosphere in the public is bound to make some influence on the judge. [We want the judge to] stop and think that there were some benefits [to Manning's actions].

TL: In a 1973 interview, you said that a “secondary objective” of releasing the Pentagon Papers was “the hope of changing the tolerance of Executive secrecy that had grown up over the last quarter of a century both in Congress and the courts and in the public at large.” How has that “tolerance of secrecy” changed over the last four decades?

DE: There was a period after the Vietnam war, partly due to the Pentagon Papers, and largely due to Watergate, that made people much less tolerant of being lied to, much more aware of how often they were lied to and how the system operated to make that lying possible without accountability. We got the Freedom of Information Act. The FISA court was set up. The FBI was reined in a great deal. The NSA was forbidden to do overhearing of American citizens without a court warrant. That lasted for some years.

But 40 years have passed, and after 9/11 in particular, all of those lessons have been lost. There’s been very great tolerance that if the magic words “national security,” or the new words “homeland security” are invoked, Congress has given the president virtually a free hand in deciding what information they will know as well as the public. I wouldn’t count on the current court with its current makeup making the same rulingwith the Pentagon Papers as they did 40 years ago. I’m sure that President Obama would have sought a life sentence in my case.

Various things that were counted as unconstitutional then have been put in the president’s hands now. He’s become an elected monarch. Nixon’s slogan, “when the president does it, it’s not illegal,” is pretty much endorsed now. Meaning not only Obama but the people who come after him will have powers that no previous president had. Abilities on surveillance that no country in the history of the world has ever had.

Interestingly, after the AP revelations and the [revelations about] Fox News reporter [James Rosen], who was actually charged with aiding and abetting a conspiracy with a source, every journalist has suddenly woken up to the fact that they’re under the gun. That may actually have the effect of waking people up to the fact that, for example, Attorney General Holder has been violating the Constitution steadily, and that he should be fired. But fired for what? For doing what had the approval of the president.

Holder should be fired for a whole series of actions culminating in this subpoena for James Rosen’s cellphone records. I think that would be the first step of resistance in the right direction, of rolling back Obama’s campaign against journalism, freedom of the press in national security.

TL: Is government surveillance of journalists more alarming than prosecution of leakers?

DE: Absolutely, but the two go together a little more than might be obvious. First of all, there’s no question that President Obama is conducting an unprecedented campaign against unauthorized disclosure. The government had used the Espionage Act against leaks only three times before his administration. He’s used it six times.He’s doing his best to assure that sources in the government will have reason to fear heavy prison sentences for informing the American public in ways he doesn’t want.

In other words, he’s working very hard to make it a government where he controls all the information. There will be plenty of leaks of classified information, but it will be by his officials in pursuit of his policies. We will not be getting information that the government doesn’t want out, that [reveals government actions that are] embarrassing or criminal or reckless, as we saw in Vietnam and Iraq.

I think the newspapers really need to address the fact that they’re going to be put in the position of printing nothing more than government handouts. There will be in effect a state press, as in so many other countries that lack freedom of the press. I don’t think they have really awakened to that change. There would be a lot of newspaper people who would be comfortable with that. But there are a lot who would not.

TL: Do you think Bradley Manning is in a different category than the other people President Obama has prosecuted?

DE: Bradley Manning’s case might seem to have no relevance to some of these other civilian disclosures because it’s a military court-martial. But the charge they’re using against him, the specific one of aid and comfort to the enemy, is one that puts virtually all dissent in this country for government policies at risk. Not only leaks in general, like WikiLeaks, or the New York Times for that matter, but people who aren’t in journalism at all. He’s charged with giving aid and comfort to the enemy, a charge that has no element of intention or motive, simply by putting out information that the enemy might be happy to read.

I think they’re going to put into the trial for example, indications that Osama bin Laden downloaded the New York Times, as anyone in the world could do. No doubt Osama was happy to have the world realize that his enemies were committing atrocities that they weren’t admitting and that they weren’t investigating. It was no intention of WikiLeaks or Bradley Manning to give comfort to Osama bin Laden. That was an inadvertent effect of informing the American public of that, which definitely did need to know it.

Specifically, they’re charging Bradley with the video. [A video of a 2007 helicopter strike in Baghdad released by WikiLeaks under the title "Collateral Murder."] That was not in fact classified. But whether it was or not, it was wrongly withheld from Reuters who twice made Freedom of Information Act requests knowing it existed. David Finkel at The Washington Post quoted from the video. Bradley Manning was aware that Reuters had made that request and had been denied and that The Washington Post had access to the video and he believed that they had the video. I don’t think it’s ever been established whether the Washington Post reporter had the video.

That video depicts a war crime, an unarmed, injured civilian being deliberately killed. A squad was going to be in the area in minutes. They also shot at people who were trying to help the victims, including a father and two children.

Manning sees this, knows it’s a crime, knows the evidence has been refused to Reuters. He knows there’s no way for the American public to see that except to put it out. By any standard that’s what he should have done. For them to charge him with that shows an outrageous sensibility. Going after the man who exposes the war crime instead of any of the ones who actually did it, none of whom were indicted or investigated.

TL: I think some people have the impression that recent leaks have posed a greater threat to national security, and that the government’s prosecutions were therefore more justified, than what you did in the early 1970s. Do you think that’s true?

DE: There’s a very general impression that Bradley Manning simply dumped out everything that he had access to without any discrimination, and that’s very misleading or mistaken on several counts. He was in a facility that dealt mainly in information higher than top secret in classification. He put out nothing that was higher than secret. [Information he published] was available to hundreds of thousands of people. He had access to material that was much higher than top secret, much more sensitive. He chose not to put any of that out. He explained that in his statement to the court. He said what he put out was no more than embarrassing to the government.

There was more meat in the material [that Manning released] than I as a Pentagon official would have expected to find in material that was only [classified as] secret. There was information about torture and deaths of civilians. Apparently that is so routine in these current wars that it wasn’t regarded as sensitive.

So far the Pentagon has not been able to point to a single example of information that led to harm to an American. If they had, I think we’d have seen pictures of victims on the cover of Time magazine.

TL: How do you feel about the way Manning released the information?

DE: Bradley Manning could have put this information on the Web. Instead, he gave it to an organization that he had reason to expect would give it to media who would have editorial judgment, staff to work on it, and long experience with such material. I would have criticized it if he’d put material that he hadn’t read himself directly on the Web.

On the other hand, he had no ability to read it all himself. It was just too much. He saw a lot of criminality, a lot of harm. He made a judgment to give it to WikiLeaks. I think that WikiLeaks did make a mistake in their release of the Afghan war logs, which they put on the Web at the same time the newspapers put their selected versions on the Web. I think that was a mistake and could have had some risk associated with it.

WikiLeaks learned from the criticism of that. And the Iraq war logs and the State Department cables, they put up only what the newspapers had chosen with a few exceptions. I think that was the right way to do it.

The Afghan war logs were not Bradley Manning’s fault. The State cables came out as a result of screwups involving Guardian and other people. Assange and others made mistakes. Bradley Manning had nothing to do with that.

TL: If you were in Bradley Manning’s situation, would you have released as much information as he did?

DE: I probably would not put out materials that I hadn’t read. But now we have three years of experience with essentially no harm, and a great deal of good. [Former Tunisian president] Ben Ali, I think, would still be in Tunisia. I don’t think you could have counted on the New York Times having put out the Tunisian material that Le Monde chose to put out. That was critical in bringing down Ben Ali. That led to bringing down [former Egyptian president Hosni] Mubarak. Looking at that altogether, with that experience, I think his decision to put out a great raft of secret material was justified and I would probably do it myself now if I had the chance.

Former NSA Chief Was Worried About “Enemy Of The State” Reputation

In the past week, details on two of the most closely guarded and controversial federal surveillance programs have been brought into the light of day and has turned the public perception of the shadowy National Security Agency into a potentially menacing and out of control organization.

And it’s not for the first time.

The 1998 Will Smith and Gene Hackman film Enemy of the State portrayed a rogue agency attempting to kill Smith’s character, a lawyer who they believe possesses information that would embarrass the agency.

“The government’s been in bed with the entire telecommunications business since the ’40s,” Gene Hackman’s character, a retired NSA official, tells Smith. “They have infected everything. They can get into your bank statements, computer files, e- mail, listen to your phone calls.”

Former NSA Director Gen. Michael Hayden was promoted to head the agency as the movie came out, and was deeply worried about the public perception it created, James Risen reported in his 2006 book State of War: The Secret History of the C.I.A. and the Bush Administration. Hayden, who went on to become the director of the CIA under President George W. Bush, “was appalled” by the NSA’s portrayal, and responded with a full-fledged PR campaign. The agency’s very existence was long a state secret.

“I made the judgment that we couldn’t survive with the popular impression of this agency being formed by the last Will Smith movie,” he told CNN in a segment pulling back the curtain on the agency.

“It has to be somewhat a secretive agency, and right in the middle of a political culture that just trusts two things most of all: power and secrecy,” he continued. “That’s a challenge for us, and that’s why, frankly, we’re trying to explain what it is we do for America, how it is we follow the law. Could there be abuses? Of course. Would there be? I am looking you and the American people in the eye and saying: there are not.”

With it’s current test far more real than a Hollywood blockbuster, it remains to be seen how the agency, and it’s director, Gen. Keith Alexander, will respond.

(h/t to former Romney senior adviser Stuart Stevens, who wrote the screenplay for a forthcoming HBO movie on the NSA and Bush’s domestic spying program.)

Obama Orders List of Foreign Cyber Targets

(Photo: Pete Souza / White House)Washington - President Barack Obama has ordered his national security team to draw up a secret target list for possible cyber attacks, a major expansion of U.S. planning for disabling and hacking into foreign computer networks, according to a copy of the top secret directive.

White House officials emphasized that the document laid out principles for defending U.S. computer networks and insisted that it did not imply that the U.S. would be stepping up cyber attacks overseas. But they did not dispute that the planning called for in the document goes beyond previous policy directives, which had emphasized protection from foreign computer hacking.

The directive "enables us to be flexible, while also exercising restraint in dealing with the threats we face. It continues to be our policy that we shall undertake the least action necessary to mitigate threats and that we will prioritize network defense and law enforcement as the preferred courses of action," said Caitlin Hayden, a spokeswoman for the National Security Council.

According to the directive, which Obama signed in October, offensive cyber attacks "can offer unique and unconventional capabilities to advance U.S. national objectives around the world with little or no warning to the adversary."

The document orders the Pentagon, the Central Intelligence Agency and other departments "to identify potential targets of national importance where (cyber attacks) can offer a favorable balance of effectiveness and risk."

The directive was made public Friday by Britain's Guardian newspapers, which obtained a copy.

Disclosure of the order came at an awkward time for the White House - the same day that Obama was meeting with Chinese President Xi Jinping at a summit in Rancho Mirage. Obama was expected to bring up U.S. complaints about Chinese intrusions into U.S. computer networks, some of which are believed to have been ordered by the Chinese government.

The order directs the Defense secretary, head of the CIA and the director of national intelligence to identify "systems, processes and infrastructure against which the United States should establish and maintain" offensive cyber effects operations.

It defines those as "operations and related programs or activities ... in or through cyberspace, that are intended to enable or produce cyber effects outside United States government networks."

All such operations "should conform to U.S. and international law and those that are "reasonably likely to result in significant consequences require specific presidential approval," it says. Significant consequences are defined as those resulting in loss of life, responsive actions against the U.S., damage to property and serious adverse foreign policy or economic impacts.

The president must approve any operation "intended or likely to produce cyber effects within the United States," except in the case of an "emergency cyber action," the order states.